In the Matter of the Complaint Against SCOTT HOUSE DIVISION, 2425 Colee Station at Fort Lauderdale, Florida 33303 and ASTOR-SCOTT, INC., 1231 E. Las Olas Boulevard, Dept. 300-N at Fort Lauderdale, Florida 33301 P.S. Docket No. 1/177 March 23, 1973 David J. Knight Administrative law Judge Thomas A. Ziebarth, Esq., Consumer Protection Office, Law Department, U.S. Postal Service, Washington, D. C., for the Complainant. Charles B. Chernofsky, Esq., Halesite, New York, for the Respondent.
By complaint filed September 29, 1972, the Consumer Protection Office of the U. S. Postal Service alleges that the the Respondent,1/ Scott House Division or Astor-Scott, Inc., Ft. Lauderdale, Florida, is engaged in a scheme or device to obtain money through the mail by means of false representations. It seeks an order under 39 U.S.C. 3005 which would--if it proves the allegations in its complaint--require mail sent to the Respondent be returned to the sender stamped as in violation of that section and would forbid the postmaster from paying a money order drawn to Respondent's order.
In substance and as more fully described below, the Complainant alleges that Respondent advertises in publications of national circulation a certain lotion for sale that is represented as capable of making wrinkles disappear giving the user a more youthful look. It is alleged that the representations are said to be false. The cost of the lotion is $4.00 including 50 cents for the mailing costs.
The Respondent's answer filed October 20, 1972, denies each of the complaint's allegations except that the advertisement was published at its request.
Hearing was held on December 14, 1972. Respondent was represented by counsel, cross-examined Complainant's witnesses but put on no witnesses. By January 18, 1973, the parties' post-hearing requests were filed and by March 19, 1973, the problem of the amendment detailed in footnote one was resolved by pleadings and without the necessity of a further hearing.
It must be determined how the ordinary reader would interpret Respondent's advertising and whether that person2/ would gather from the ad those representations alleged in the complaint. It must also be found whether the product sold will achieve the results represented in the ad and that the mail is used in the sale of the lotion. Lacking any of these findings, the order sought could not be issued.
Three copies of Respondent's advertising were introduced into evidence (Exhibits C-1, 6 and 7) through U.S. Postal Inspector Allen O. Peffer. These ads were run full-page in several national newspapers and magazines3/ which, in turn, do not appear to be directed at the intelligentsia. The headline reads:
Smooth Away Wrinkles
for that fresh, young-again look
And in large bold type at the upper left hand side
Wipe off 10 to 20 years
from your appearance
with amazing temporary
WRINKLE REMOVER
LOTION
$3.50
The motion is said to be extra-rich and extra-powerful and it must make you look "as much as 10 to 20 years younger ... lovelier ... more desirable" otherwise the entire price paid would be refunded if the unused portion is returned within seven days.
The lotion is described as a penetrating foundation make-up. Just a dab as needed once or twice a day is directed to be applied and the regular make-up is used over the lotion. With that it is advertised as fast acting, smoothing out "old-looking, wrinkled skin-slowly but surely--right before your eyes." Age lines, crows-feet and wrinkles disappear from five to eight hours on any woman even 60 years old.
The ad rambles on repeating its claims as paraphrased above. It has four inset drawings showing the face's apparently most commonly wrinkled areas: crow's feet around the eyes; the furrowed brow; laugh lines parenthesising the mouth; and baggy eyes.
Based on this ad, I find that the ordinary reader would interpret it and find the same representations as alleged in the complaint, to-wit:
that "Wrinkle Remover Lotion" will
(1) cause the user to appear 10 to 20 years younger;
(2) make age-lines, crow's feet and wrinkles disappear for five to eight hours;
(3) alter the user's appearance almost like a surgical face-lift, at least to the extent that wrinkles or creases would be covered and disappear;
(4) work right before your eyes, slowly but surely;
(5) be effective for the wrinkles around the brow, eyes, mouth and other problem spots at the neck and chin line; and
(6) work for any woman as advertised irrespective of her age and the results are guaranteed.
The Postal Inspector, using a fictitious name purchased the Wrinkle Remover Lotion through the mail using a coupon attached to the ad. Hence, I find that Respondent uses the mail to obtain money--one of two necessary footings to support the order sought under 39 U.S.C. 3005.
The remaining footing is whether the representations made in the ad have been shown to be false.
The lotion is contained in a plastic vial, 1.25 ounces which the directions say is approximately a six month's supply. It is labelled, "Eternal Youth--Temporary Wrinkle Remover." The instructions advise a perfectly clean face and the application of a small amount spread over the troublesome area. A five minute drying time is needed and then the regular make-up is applied (Exhibit C-5a).
The lotion contains 93.3 percent water; 5.7 percent silicate; one percent gum; no sulphates or protein; and just enough perfume for a pleasant odor and dye for a detectable color (Joint Exhibit No. 1).
The second and final witness at the hearing was Complainant's medical doctor. His duty is to determine whether a product will do what the ad says. The lotion was submitted to him for evaluation but he couldn't remember when. He was asked whether on the basis of the chemical analysis (Joint Exhibit No. 1) an application of the substance as directed would bring on a younger look. His response was that the lotion would coat the skin like any cover-up cosmetic does. It would act as a mask or a thin film and probably, from a distance, not be detectable and then only on the finest of the age-line creases. But wrinkles or any other of the larger deformities would not be covered.
He testified at several points that the lotion is a cover-up but would have no physiological or anatomical effect and would not approach the result achieved by a surgical facelift. The two types of surgery he described would stretch or tighten the skin removing the deformity.
Even to cover some areas, he said, the lotion would have to be applied thickly as a mask but would not have any effect on baggy eyes and, if applied so heavily around the mouth to effectively cover the laugh lines, the substance would crack when the user smiled.
On cross-examination, the doctor testified that he never tested the substance. He was asked, concerning the cracking of the lotion when a person smiled, whether his answer was based on the contents of the lotion as shown in the chemical analysis. He answered no; but cover-up cosmetics are usually dry and cause a coating and, if it is dry enough , would crack. This answer was given despite the analysis revealing a percentage of gum which would have a filling-in effect and might remain pliable.
I find that the evidence is not sufficient to support the allegation that the ad's representations are false. The evidence rests solely on the doctor's testimony. He did not test the lotion. He made no reference to the chemical analysis of that substance even testifying that his answers were not based on the determined qualities of the lotion. But he did state that the lotion would cover some creases. Thus, although unlike the process of surgery, the results of using the lotion would be like those following surgery to the extent that at least some lines would be less noticeable.
Prior to the hearing, Complainant's counsel applied the lotion to his forehead while the doctor watched. Some time later while the doctor was on the stand, he testified that the furrows were just as visible then as before the application. But this reveals another weakness. Aside from the questionable validity of this test, the directions for using the lotion--recited in both the ad and on the vial--were not followed. The lotion is to be applied; allowed to dry; and then the user's usual make-up is to be applied. The last of these steps was not followed in the ad hoc test. In fact, nowhere in the doctor's evidence can any reference be found on the effect of first the lotion then the make-up. Thus, his conclusion that the motion would not alleviate large deformities is question- able. There could well be a sufficient covering or masking to produce a younger-looking appearance.
The impression I received from the doctor's testimony and demeanor is that he was talking generally about cover-up cosmetics but not the product at bar. It was not proven what this particular lotion will not do or how its failure is related to the ads.
The mail-stop order issuable under 39 U.S.C. 3005 is a drastic measure vitally affecting a person's business. The grant of such an order need be supported only by satisfactory evidence that money is obtained via the mail as a result of false representations. Even though the glaring effect of the Respondent's ad is to inflame the prune's passionate remembrances of its by-gone days as a round, smooth plum, I cannot find--on the record--that the representations are false.
The parties' proposed findings of fact and conclusions of law to the extent embodied in this decision are adopted. Otherwise they are rejected as not supported by the substantial evidence.
I conclude that the complaint as amended should be dismissed.
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1/ Following the hearing, the Complainant moved for an order to show cause why the name and address noted, alleged to be the Respondent operating under a different name and address but advertising and selling the same product in the same way, should not be included. The Respondent does not object except for the inclusion of "Dept. 300-N" which it says should be included. Accordingly, the complaint is deemed so amended. Use of the term Respondent includes both Scott House division and Astor-Scott, Inc., at both addresses.